National Insurance Company Limited vs Anupam Agnihotri And Ors

Heard, learned counsel for the appellant, Mr. Amaresh Kumar, learned counsel for the respondent no.4, Mr. Arun Kumar Dey and learned counsel for the respondent No.5, Mr. S. J. Roy.

This Miscellaneous Appeal has been preferred by the appellant, National Insurance Company Limited against the award dated 21.09.2016 in Compensation Case No.08 of 2014 passed by learned District Judge-III-cum-Motor Vehicles Accident Claims Tribunal, Jamshedpur whereby the claimants namely, Anupam Agnihotri,Tarun Agnihotri and Swati Agnihotri have been awarded compensation to the tune of Rs.8,40,000/- along with simple interest @6% per annum from the date of filing of the claim application till the date of payment.

Learned counsel for the appellant has assailed the impugned award on the ground that the police has not submitted charge sheet against the driver of the vehicle insured before National Insurance Company Limited i.e. Indica Car bearing registration No.JH-05J-9629 rather the police has only chargesheeted the driver of the Tourist Bus bearing registration No.WB-25A-9665 insured before M/s Bajaj Allianz General Insurance Company Limited but learned Tribunal without having any cogent material on record fastened the appellant Insurance Company with liability of 30% of the awarded amount and directed the appellant to pay the same whereas 70% awarded amount has been fastened against the Bajaj Allianz Insurance Company Limited, who is the insurer of the offending Bus, which was charge sheeted by the police after investigation.

Learned counsel for the appellant has put reliance upon judgment passed by the Apex Court in the case of Meera Devi and Another Vs. H.R.T.C. and Others, reported in (2014) Acci. C.R. 469(SC) whereby the Apex Court has held in paragraph-10 as under:

"10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."

Learned counsel for the appellant has further submitted that entire amount ought to have been paid by the Bajaj Allianz Insurance Company Limited, whose vehicle was found by the police responsible for the accident and has submitted charge sheet against them only.

Learned counsel for the respondent no.5, Mr. S. J. Roy has submitted that there is head-on collision between two vehicles, as such, there is contributory negligence and the learned Tribunal has rightly saddled the liability upon National Insurance Company Limited with less amount i.e. 30% of the award, as such, this Court may not interfere with the same.

Learned counsel for the respondent no.4, owner of the Tourist Bus WB-25A-9665 insured before Bajaj Allianz General Insurance Company Limited, Mr. Arup Kumar Dey has submitted that his vehicle was duly insured before the Bajaj Allianz General Insurance Company Limited, as such, he has nothing to say in this.

Heard, learned counsel for the appellant, learned counsel for the respondent no.4 as well as learned counsel for the respondent no.5. Since there is nothing on record to establish the contributory negligence on the part of the insured vehicle of the appellant i.e. Indica Car bearing registration No.JH05J-9629 and police has only submitted charge sheet against Tourist Bus bearing registration No.WB-25A/9665, as such, in view of judgment passed by Apex Court in the case of Meera Devi and Other (Supra) this Court directs the Bajaj Allianz General Insurance Company Limited to indemnify the entire awarded amount.

The Miscellaneous Appeal is accordingly allowed. The 30% liability, which was imposed upon the appellant by the learned Tribunal is also shifted upon the Bajaj Allianz General Insurance Company Limited, as such, the entire compensation amount has to be paid by the Bajaj Allianz General Insurance Company Limited. At this juncture it has been submitted that till date the Bajaj Allianz General Insurance Company Limited has not preferred any appeal against the impugned award.

The amount deposited by the appellant pursuant to the order dated 12.07.2017 passed by this Court shall be realized in favour of claimants but the same shall be reimbursed by Bajaj Allianz General Insurance Company Limited to the National Insurance Company Limited and the balance amount shall be paid to the claimants by the Bajaj Allianz General Insurance Company Limited within a period of 60 days from today.

The statutory amount deposited by the appellant at the time of preferring the appeal shall be refunded/remitted to the appellant National Insurance Company Limited by Registrar General of this Court within a period of four weeks from the date of filing of the requisition by the learned counsel for the appellant.